Hiring of Canby's Tyler Smith raises questions
The hiring of Canby attorney Tyler Smith by the Newberg School Board has drawn condemnation from the board's minority members and raised legal questions as the district grapples with myriad other legal concerns. Smith's hiring by the board's conservative majority, which occurred prior to an Aug. 24 executive session that was closed to the public, may have violated public meetings law in that it occurred in a separate, public session for which the board did not give legally required notice.
According to emails obtained by this newspaper, board vice chair Brian Shannon was warned by district superintendent Joe Morelock on Aug. 24 that making a motion to hire Smith that night would be illegal.
"Hello Joe and Jennifer," Shannon wrote at 9 a.m. to Morelock and board secretary Jenn Nelson. "This evening during our executive session I will be making a motion to add Tyler Smith as supplemental legal counsel representing the Board. Please provide him the link and be prepared to add him to our executive session meeting, assuming the motion passes."
Thirteen minutes later, Morelock responded.
"As per public meetings law, no motions or decisions can be made in Executive Session, only in a publicly noticed regular session," Morelock wrote.
Nearly three hours later, Smith himself responded to Morelock arguing that because the board is allowed to consult with legal counsel during executive session, his hiring and appearance at the meeting would not be illegal, and it wouldn't even require a motion or vote by the board.
"A special vote to retain or name the exact attorneys who are counsel for the school board is not and should not be needed," Smith wrote.
But Shannon chose to make a motion and have the full board vote on Smith's hiring anyway, all before the Aug. 24 executive session officially started. When pressed on the issue by dissenting board members, Shannon explicitly said the board was not yet in executive session when his motion was made and voting on Smith's hiring occurred.
That means the session was public, and therefore Shannon and the board majority did not give the required 24-hour notice to the public, nor did they provide an opportunity for people other than district staff, board members or permitted media to view it. That flies in the face of public meetings law as laid out by the Oregon Department of Justice.
"The Public Meetings Law requires that public notice be given of the time and place of meetings," the Oregon Attorney General's Public Records and Meetings Manual reads. "The public notice requirements apply to any 'meeting' of a governing body subject to the law, including committees, subcommittees and advisory groups.
"Notices for meetings that will include both an executive session and a non-executive session should give notice of both and state the statutory authority for the executive session. Special meetings require at least 24 hours' notice to the general public, any news media who have requested notice and the members of the governing body. An 'emergency meeting' is a type of special meeting called on less than 24 hours' notice. The governing body must be able to point to some reason why the meeting could not be delayed to allow at least 24 hours' notice. An 'actual emergency' must exist, and the minutes of the meeting must describe the emergency justifying less than 24 hours' notice."
At no point during the Aug. 24 meeting did Shannon describe his motion as part of an emergency meeting, nor does that language or justification of an "actual emergency" appear in the meeting's minutes. Earlier that day in his email to Morelock, Smith argued that because the board did not vote on who the district hired as its contracted lawyers (which is not its role), that public notice would not be required for his hiring and the board needn't vote on who it hires as its lawyer. It should be noted that Smith was hired by the board itself and not the district.
"Selection of an attorney is not something that requires a board vote at all," Smith argued in his Aug. 24 email to Morelock. "Did you vote on the legal counsel that was selected by someone other than the School Board who is presenting to the board tonight? I think the answer is obviously no. The district can select legal counsel for the board at any time."
Smith then quoted a legal statute to attempt to prove his point.
"'A district school board may, by resolution or policy, authorize its superintendent or the superintendent's designee to enter into and approve payment on contracts for products, materials, supplies, capital outlay, equipment and services that are within appropriations made by the district school board pursuant to ORS 294.456.' Thus, the district board clearly can hire legal counsel, which are services and no vote is required," Smith said.
The board did not give authorization to superintendent Morelock to hire Smith to represent the district. The majority voted to hire him to represent the board itself. Additionally, ORS 294.456 applies to the board's ability to adopt a budget and appropriate funds; it does not discuss a school board hiring or contracting legal services (or any personnel for that matter) on behalf of a district.
Despite being warned of the legal consequences by Morelock, Shannon invited Smith to the Aug. 24 meeting by forwarding him an email with the private Zoom link. It is unclear if Shannon or any board member has the power to invite unauthorized parties to executive sessions, let alone regular meetings of the board. Legal questions about Smith's hiring remain a talking point among the minority of board members, who have also questioned Smith's qualifications for providing legal advice on educational and school board matters.
Smith's firm is ostensibly being paid for his time working on behalf of the Newberg School Board, but it is not clear where that money is coming from. According to a copy of the attorney-client agreement between Smith's firm and the school board, fees range from $125 to 325 per hour for the services of Smith, his fellow attorneys or their staff.
District-contracted lawyers are paid out of the district's operating budget. Whether that is the case for Smith, who was hired by the board and not the district itself, remains to be seen.
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